An S-Corp has income of $100,000 and the owner pays himself $90,000 in wages. The required DB contribution for the year is $100,000.

Based on previous posts it appears that a loss created by the DB plan is allowable and that the loss can be carried forward or even possibly backward to offset income from the S-Corp.

Is it possible to use the loss to offset income (not from S-Corp) from the spouse of the owner of the S-Corp?

We had a retiree pass away on 5/27 and we were not notified until 7/20 when her 7/1 pension check was returned to us. We were, of course, able to recover the 7/1 check since it was returned, but we have been unable to recover the 6/1 pension check.

I sent a letter to the retiree's sister, who sent me to her neice, who sent me to her daughter, who sent me to the greatneice of the woman who lived with our retiree. Apparently, the woman who lived with our retiree (they had a joint bank account) is now in a nursing home with Alzheimers. The greatneice just called and said she doesn't know what happened to the 6/1 check. And, everyone else I've dealt with is refusing to repay the 6/1 benefit.

The pension check has cleared our bank account and we're in the process of getting a copy of the endorsed check. But, I'm not sure that will even do us any good.

Not sure what to do at this point. Will our plan be in violation of any ERISA rules/regs if that benefit is never returned to the pension fund?

Help!!

I utilize an off-the-shelf volume submitter software package with an IRS opinion letter on the pre-approved language. One of the design options is to make each participant their own allocation group with the allocation rate defined as a "pro rata" amount of the compensation of each participant in the group. I recently submitted this document to the IRS in the context of a proposed correction under audit and was told by the EB Manager that the plan was not qualified and did not contain a definitely determinable benefit. I was informed that an amendment to the plan would have to have been made each year to define the actual allocation?!? I am not interested in challenging this or becoming a "test case" for the service. Any thoughts on this unusual outcome??

What is the current state of the PBO = ABO = sum of cash balance accounts issue? Any chance this is going to be effective for FAS132 disclosure at 12/31/05?

It is my understanding that if the employer contributes to an HSA for anyone who enrolls in the HDHP, it needs to make a contribution to an HSA for all the employees who enroll in the HDHP. What do you about employees who fail or refuse to sign the documents required by the trustee to set up the HSA?

I found an error on withholding on a distribution from 2004. THe 1099R is OK but taxes were withheld and sent to the IRS and state in error. Now that we are in a the tax year 2005, I know there is a way to recliam the withholding errors from previous years,

Does any of the knowledgeable folk on this board know how to petition the government (what form?) to reclaim back taxes? Help! and Thanks!

The plan has 3 months eligibility for deferrals and 1 year for the safe harbor match. The plan consists soley of deferrals and safe harbor match. The plan is top heavy, is it deemed not to be top heavy since it has the safe harbor match, or would top heavy minimums be required for the new hires that aren't eligible for the match?

What about the ADP testing. would you have to test the new hires ie the otherwise excludables. Not a big issue since HCE's are rarely in theis group.

Thanks!

Is a TPA required to prepare a Form 5498 for a traditional IRA Rollover into a 401k plan? I ask this because I am becoming aware that we have participants who make this request with their IRA Custodian but the Custodian will only issue the check directly to the participant - unless a TOA request is made in advance (in this case it was not). I gather that the participant will have a taxable event and no 5498 to offset the timely rollover into the 401k.

Thanks for your response.

I am trying to determine whether a clause in a change in control severance agreement is a common one for publicly-traded companies. The agreement provides that an executive will be considered to have terminated employment and be eligible for the severance benefit if he/she is reassigned to substantial duties that are materially inconsistent with his/her duties, responsibilities and status prior to a change in control. OK so far. In the same paragraph, the agreement further provides that the "reassignment" provision will not apply if the company is no longer publicly-traded and the executive no longer has duties and responsibilities associated exclusively with a publicly-traded company, such as SEC reporting, stock exchange reporting, etc. I'm being asked whether this exception is a common provision.

My sense is that such a provision is not unusual, but I don't have much hands-on experience with this type of agreement. What is your experience?

Thanks!

Does severance pay generate hours of service in a DB plan?

Subtly sarcastic example.

Basically bland example.

Candidly critical example.

A client maintains a self-funded plan that covers independent directors. As I read the definition at 3(40) of ERISA, this makes them a MEWA. I realize that the DOL does not require a Form M-1 in this instance. However, nothing I have found so far takes them out of the definition of a MEWA.

My impression is that many companies cover their independent directors without considering their plan to be a MEWA - and just do not worry about this issue. Does anyone have any thoughts/comments? Am I missing something?

I am looking for some independent thoughts on a feature of an existing long-term incentive plan that has resulted in many 409A group discussions.

This award has a performance-based stock option component where the number of options that will eventually vest can range from none to 140% of a target number detailed in the agreement. The determining performance achievement levels will be measured at the end of a 3-year period.

The feature that is causing robust debate is the provision that sets the ultimate exercise price at the fair market value (fmv) of the underlying stock at the time the award was granted.

As an example: In 2004, 100 performance options were awarded with an exercise price of $4.00 which equaled the fmv of the stock on the grant date. Based on a 140% performance achievement level, the employee received 140 vested options at the end of the 3-year performance period with the grant date exercise price of $4.00. The employee will have 7 years to exercise the options.

Question: At the end of the period, the stock value is $10.00. How do you think the provisions of 409A would look at the spread between the vest date fair market value of $10.00 and the grant date based exercise price of $4.00?

Would the spread be immediately recognized as income or would the income be recognized when the employee chose to exercise? This is a performance based plan and these are non-qualified options.

I would provide my guess, but I would rather read the feedback.

I am wondering if the 30% limit under 1.401-10©(3)(i) still applies. It states that "If a self-employed individual is engaged in a trade or business in which capital is a material income producing factor, then, under section 911(b), his earned income is only that portion of the net profits from the trade or business which constitues a resonable allowance as compensation for personal services actually rendered. However, such individual's earned income cannot exceed 30 percent of the net profits of such trade or business. The net profits of the trade or business is not necessarily the same as the net earnings from self-employment derived from such trade or business."

For example, assume a business generates $1,000,000 in income. Does this mean than only $300,000 could reasonably be considered as constituting earned income.

What about situations where a business pays an owner a management fee that exceeds 30% of the entity's income?

Thanks in advance.

Ed

OK - Maybe it's a stupid question, but.

Anyone know how to structure a 401(a) plan distribution due to disability that will afford the employee to receive the monies on an income tax-free basis?

I thought the general rule is tax treatment of disability benefits atbrutable to employer contributions that were not includible in the gross income of the employee or contributions made by the employee on a pre-tax basis are always subject to income taxation, (perhaps excepting a few types of insurances).

Thanks.

The headline shows it all. This is a failure to follow the terms of the plan that has been ongoing for several years. Plan provides for in-kind distributions, but the plan has just been making lump sum distributions in cash.

Calendar year safe harbor plan. They currently exclude division A employee's from participating. They want to allow them to participate beginning Sept. 1. I can't see any reason why would this would jeopardize safe harbor, but I want to make sure I'm not missing anything.

Thanks in advance for any guidance.

I am working with a client who works for Stony Brook University and he contributes to a 403b plan with TIAA-CREF. He also has a 414h plan through SUNY and is periodically transferring assets from TIAA-CREF to the 414h. Has anyone ever heard of this? If so, what would the advantages be? I had no idea that this type of transfer was allowed. Thanks for any help with this.

Is there any basis on which to exempt from COBRA coverage a hospital's employee assistance plan in which 1) the counseling is provided by hospital staff to all employees and 2) under the terms of the Plan, coverage can continue for 5 visits even after termination? It has been suggested that "internal" programs may be viewed differently than programs using external providers.

What should we do if an employee’s paycheck (after tax withholding, garnishments and health plan premiums) isn’t big enough to make his or her deferral election? Should we make as much of deferral as we can? I thought there was a government opinion that said the election is invalid, so no deferrals should be taken out.